Working Paper No. 13-69:
The Interpretation-Construction Distinction in Patent Law

Author(s):

Abstract:

The
ambiguity of claim language is generally considered to be the most important
problem in patent law today. Linguistic ambiguity is believed to cause
tremendous uncertainty about patent rights. Scholars and judges have
accordingly devoted enormous attention to developing better linguistic tools to
help courts understand patent claims.

In
this Article, we explain why this diagnosis is fundamentally wrong. Claims are
not often ambiguous, and linguistic ambiguity is not a major cause of the
uncertainty in patent law today. We shall explain what really causes the
uncertainty in patent rights, how the erroneous diagnosis of linguistic
ambiguity has led the literature off track, and what will get us back on track
to solving the uncertainty problem.